Shebley v. Quatman

134 P. 68 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

1. The first question that presents itself is as to the nature of the contract between plaintiff and Kendrick. Plaintiff’s counsel contends that it was such as to constitute a partnership' in dealing in land, and relies principally upon the ease of Flower v. Barnekoff, 20 Or. 132 (25 Pac. 370, 11 L. R. A. 140), fo sustain that contention. Tiiis case is authoritative and furnishes the rule to be followed by us; and, testing thte. evidence here taken by that case, we do not think a partnership is established in the case at bar. As well remarked in that case: “Partnership and community of interest, independently considered, are not always the same thing, nor is a mere community of interest sufficient, but there must be an agreement to share the profits and losses, and such profits must be shared as a result of the adventure or enterprise, in which both are engaged and not simply as a measure of compensation.”

2. In this case we are not- left to the contradictory statements of the parties as to what Kendrick’s agreement was, as, at plaintiff’s demand, it was reduced to writing and signed in duplicate by Kendrick and plaintiff. It is as follows:

“This is to certify that one half of the net gain to J. K. Kendrick of the contract between J. K. Kendrick, Gr. A: Barceloux, W. E. Scearch, and C. L. Donohoe is to be paid to J. Gr. Shebley for his part in putting through said deals.

“(Signed) J. K. Kendrick.

“ J. C. Shebley.”

We think this is conclusive evidence, deliberately made by the parties themselves, that plaintiff should receive his one half of any prospective profits that might accrue to Kendrick from the sale of the property, as compensation. The agreement expressly recites that this “net gain” was to be “paid” to him, which negatives the idea that he was to receive any interest in the corpus of the property itself. He was working for Kendrick in the matter on the basis of a commission or a percentage of the profits to be derived from the sale; and, if there was a bona fide sale and no profits accrued from it, he stood to lose just as Kendrick did.

3. It is claimed that the sale was not bona fide, but was merely colorable, and that Kendrick still retains his interest in the property, and much of the testimony is directed to this point; but, without encumbering the record with a detailed discussion of the testimony, we will say that it leads us to the-belief that Barceloux and his associates, having discovered that they could not make an immediate sale of the property at a profit, became anxious to close the matter up, and that Kendrick could not well do otherwise than to convey it at their request and get out of the venture. Shebley’s claim that he signed one of the duplicate agreements along with Kendrick, Barceloux, Scearch and Donohoe is not borne out by the testimony, nor by his conduct. It is denied by each of the defendants. Thus in a letter to J. Kendrick he uses the following language: ‘ ‘ Sir: I demand a copy of the contract which was existing between you on the one part and Mess. G. A. Barceloux, C. L. Scearch, and C. L. Donohoe on the other, on Sept. 18, 1909,” etc. It is inconceivable that if he had been one of the signatory parties to such contract he would have omitted so to state in his formál demand for a copy. The claim that he signed the document is evidently an afterthought, and is not sustained.

4. There is some opinion evidence that the property is worth more than the price paid for it in the trade between Quatman and the syndicate, but this is vague and unsatisfactory. It has not been sold, and its value as mining property, or for any other purpose than for agriculture or grazing, is a matter of speculation and doubt. It is a matter of common experience that not one mining venture in fifty is a success, and the number of experienced miners who have failed in such ventures when their theories are put to the practical test by the hydraulic and sluice is probably about in the ratio suggested. The fact that somebody has been given an option to purchase such property at a higher price proves nothing as to its real value, or even its market value. Such options are usually taken with a view to examination of the real merits of the property before purchase, or with a view of finding a purchaser who will pay a better price without such examination.

5. Courts will not presume fraud and will not find fraud except upon clear and satisfactory testimony; and such testimony, in our opinion, has not been produced in this case.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.